*1 knowledge defendant’s character. suggestion There some or inference O’NEAL, Error, E. W. Plaintiff may have had an affair that defendant proximity lived in close with female who Oklahoma, The STATE of Defend- prose- properly The court told him. ant in Error. proper questions were cution that such No. A-13982. or inferences suggestions more than unless Appeals Court of Criminal of Oklahoma. offered, whereupon prosecution were Feb. would; thereafter, the that it indicated Rehearing May 6, Denied testimony of a offered the sworn State previous record re- witness at a trial. The by
veals faith was made good effort trial, at this have her present State to process. with she could not be served offer, pur-, testimony, of this was for fulfilling the court
pose statement to proof of the would offer the State inferences, on suggestions, or raised cross- However, proof offer examination. other it was objected reasons ruling In the motion for admitted. trial, that in his new court stated opinion because there was “misconduct had to make good sought
the State in faith proof, thought that he apparently only prevented was able to do He was so. admissibility by the on the ruling court’s transcript prior testimony.” many In each of cases cited was ob- in which a reversal tained, prove, or to failed to of- proof, support the infer-
fer effort ences We raised cross-examination. distinguishable from
feel case is those the record bears out cases because pros-' finding judge the trial good faith effort
ecution had made a prove to the al- that there substance
leged improper cross-examination. presented strong view of the evidence light prosecution sentence opinion jury, are of the
given we fair and im- defendant received a trial, partial according process due law, judgment and sen- and therefore the hereby tence of the trial court affirmed. NIX, JJ., BUSSEY concur.
BRETT, Presiding Judge. Error, O’Neal,
The Plaintiff in E. W. defendant, hereinafter referred to as charged by Information the District County Court of Oklahoma case no. *3 31054, Perjury; with the crime of tried jury, guilty, pun- found ishment left assessed Court. 1965, 8, On November defendant was sen- imprisonment tenced year to one in the McAlester, costs, penitentiary state at in jury, accordance with the verdict of the and from that judgment and sentence he appeals. now 1969, opinion 21, May rendered on in which this affirmed Court defendant’s con- viction, publication was withdrawn from 25, 1970; February on opinion and this results from defendant’s Petition For Re- 3, 1969, hearing filed on accordance June Court, with Rule 16 of the Rules of this opinion. rendered lieu the earlier
I.
The record shows that on October day 1965—-the preceding trial —defendant Quash filed an “Amended Motion Set Aside Information Filed Herein.” On 26th, following October the trial day court entered “that following order: demurrer, quash, the defendant’s motion to suppress, motion and motion to dismiss to, hereby same are overruled.” Thereafter, commenced. The facts at the trial reveal that adduced Court, appearance in District bond1 No. evidence, was submitted January 8, stated on face that $3,000.00 in excess of worth property freeholder of described as Springs Block Addition Artesian Second City, Aleñe Mc- Oklahoma Oklahoma. signed testified that defendant said Gowan quit bond before A claim deed2 her. Chickasha, Ivy, plaintiff Red in er- showing admitted in evidence transfer of ror. property the aforementioned from Vald- Gen., August Blankenship, Atty. for de- he F. Pitman O’Neal G. T. to E. W. 1, 1963, August which was filed 1963. error. fendant appears States 1. in the 2. This in the easemade as This easemade as States page page Exhibit Exhibit at 36. # # Gibson, quit A into jury, claim deed3 was admitted also member of the 2, 1963, August testified to same evidence which was dated effect. day, showing the the same and notarized Curtis Harris P. testified from defend- property transfer the same disclosed the same that he in- This F. Pitman. ant back Valdhe question, not own the real estate it was filed Febru- strument indicated that it in merely held trust for Pitman and in- ary There was also admitted the defendant testified before the Memo- evidence, Exhibit #4 a State’s quit claim deed from O’Neal Pit- Agreement randum between Valdhe F. shown, to Pitman was executed on date 1963; O’Neal, July dated man and E. W. August, day 7th and delivered exhibits were introduced. two other back Mr. Pitman. chief, in error in defend- presenting propositions its case in addition The four *4 brief, by appeal on urged
to the Aleñe McGowan ant’s defendant of refusing in (1) of the follow- are: that the court erred offered Regan, deputy Motion for ing grant H. court to defendant’s Contin- witnesses: W. ; bond; Bryan in the bail uance that the erred overrul- (2) clerk identified court who Beaty, County Quash Clerk’s Motion to employee defendant’s Amended information; Office, claim quit (3) identified the two and set aside the who office, grant refusing in in to the de- as filed court erred deeds been County a Attor- and who testified on cross-examination fendant mistrial when Harris, ney, the record while on direct exami- that defendant was shown be Curtis 2, 1963, voluntarily placed property August nation the defendant’s owner from no of the February and that there were character at issue and further error property voluntary in state- refusing filed to strike encumbrances court time; Ruby with refer- during period by ments made Robert Harbour Jewell typed placed and wit- defend- Rodgers, secretary a who ence to matters when he issue; agreement be- nessed the first ant’s character at and #4] [exhibit Pitman; F. in giving Robert trial court erred Instruction No. tween defendant and Pitman, in the re- president refusing give and attorney vice and Liberty Com- National and quested Bank Trust Instruction. Division, pany Legal identified cer- who assignment first Defendant’s #5; Floyd signature tain cards—exhibit J. reversi error court committed ap- Askew, appraiser, professional a who failing grant ble error in Motion praised property April the listed Continuance, this properly $1,300.00 and stated val- being as worth Court, defendant’s Mo since neither the date the bail bond ue was the same thereon, tion, ruling nor are the court’s executed; Fore- R. Harbour the Robert This is also contained in the casemade. de- before which man of assignment in true defendant’s second subpoenaed appear; Richard fendant was erred in overrul error that the trial court jury; of the same Gibson a member Quash ing the defendant’s Motion to attorney and the county Curtis P. Harris be amended information record since the grand jury. who assisted the transcript fore us not reflect the does Harbour a Robert testified at preliminary taken at Foreman, proceeding he was hearing. Pit- he and
that defendant disclosed Valdhe State, 114 P. In Cowan v. 5 Okl.Cr. for a bail man had entered contract into Syllabus 3: this said No. Court held cer- business which defendant bond a case bring desires to trust, “If properties tain but that defendant bring upon appeal, at least here he must property himself. Mr. Richard owned page Exhibit # in the casemade as States This “ * * * proceedings of the up enough day January, the 8th [0]n A.D., 1964, pass this court County court to enable Oklahoma lower defend- * * * ant, upon ques- safely intelligently then there commit the crime of presented perjury tions for decision.” then and there wilfully, unlawfully, feloniously and State, further, Sing And in Lem Okl. falsely deposing, swearing certifying 544, 113 held Cr. P. Court oath before Aleñe McGowan Syllabus No. 2: duly appointed, qualified acting aof occurring during “Matters the trial Foster, Court Clerk for Wendell Justice er- assign case which counsel desire * * * of the Peace duly after being in the appear by proper ror must recitals and regularly sworn the said Aleñe duly pro- as the law casemade certified ** * McGowan the defendant E. W. vides, for a independently of motion did then and wilfully, O’Neal there un- new trial.” lawfully, feloniously testify, and falsely assign- fourth Defendant’s third and declare, depose certify under such herein ments error will discussed oath there he was then and there the required. This the reason such is owner of certain property wit: ultimately being determined on matter is fundamen- question, which Constitutional BLOCK ARTESIAN SPRINGS notwithstanding the fact tal nature and SECOND ADDITION TO OKLA- *5 in defendant’s four that it is not treated CITY, HOMA STATE OF OKLA- brief, the error is propositions urged in his HOMA assignment of error listed as his fifteenth and did then there wilfully, and unlaw- Error, of being: his Petition in “Error fully, feloniously, falsely testify and County Attor- permitting the Court in the secured, was worth double the sum to be Jury and tes- ney Members of the Grand exemptions, over and all above debts and tify purportedly alleged- as to statements property exempt by liabilities besides law ly Jury.” made said Grand * * from execution n. III. question squarely
The fundamental fac- reviewing ing this Court is: After record of defend- the ant’s excluding the all defendant, trial — prospective target Is a or a of defendant, complained e., byof i. the testi- ap- investigation, required an who is mony grand jury of two members of the pear grand subpoena jury by and that of attorney the district advised, tecum, —it duces of —who prove charge the State failed the of rights against constitutional self-incrimi- “perjury,” grand jury without the testi- nation, truthfully the who testifies before mony. thereby incriminating giving confession, testimony, charged of a Defendant was nature 'with the on a bail bond concerning justification the commission of earlier made a false prior and called. offense—immune from indictment to the time the the basis prosecution justification the so That statement was offense confessed? charge. for this by argued It is the State Title introduced, court in this case At defendant’s trial the 342 authorizes O.S. the § chief, part quit as the claim require the of the of its case prop- concerning alleged defendant’s- deed transferred the described members the the the face of “perjury,” erty crime of committed when defendant. On deed, clearly it to be the the bail bond showed defendant justification the on executed Also, one legal property. The information owner of the January on that the deed alleged, as follows: the State’s witnesses testified charging defendant recorded; properly has been that de- guilty perjury solely of the —consisted grand testimony. Likewise, fendant was be the owner rec- jury ques- shown to the listed, ord for property aspect delivery the there were the tionable the sec- outstanding no encumbrances ond returning deed back to property property, at the time bail was exe- by bond Pitman was revealed tes- jury proper- deed timony. county cuted. Since other attorney The [prosecutor] record, ty little there seems doubt essentially testified to same re- facts capable by of encum- members, that defendant was fully except vealed jury bering property legal placed special as the owner. emphasis that he on the questionable aspect offered the trial agreement” “trust agree- created concerning property bond business, list- ment establishing bonding the bail security ed in the dif- seemed exist fact that defendant told the ference declared between that he delivered the deed to Pitman placed and the value property, value the date was executed.4 professional appraiser. on it But At the conclusion State’s considering professional the fact that the evidence, defendant demurred to the year appraisal made and three one verdict, moved for directed both of which executed, months after the bond was were denied the trial court. Thereafter significance. difference loses some defendant did testify in his own defense deed, the addition to the State introduc- witness, offered the of one an agreement ed into evidence entered into Mr. Valdhe Pitman. Mr. Pitman testified between defendant and Mr. Pit- Valdhe concerning his transfer prop- of the real operation of the “Oklahoma man erty original agreement identified agreement Bonding” Bail business. The as well as second one entered into be- been provided had tween him and defendant. On cross exami- subpoenaed Pitman, prosecutor nation of Mr. at- quasi-judicial body. Defendant also tempted to show that the deed from defend- *6 produced papers required certain other ant to Mr. Pitman —which consti- allegedly subpoena Consequent- the tecum. duces tuted a of redelivery property the to Pit- ly, Ias now review the record the before man, after the business was dissolved—was Court, challenged testimony without the actually delivered to immediately Pitman evidence, prove the failed to after the recorded; first one was that charge perjury against the defendant. the recording date shown the second record, It from the the tes- only deed was not a true reflection de- timony in in offered the State’s chief But, case livery to Mr. Pitman. absent the tes- the —which tended to show defendant to be timony concerning might what defendant parts testimony County Attorney 4. Pertinent were: Curtis Harris testified grand jury Harbour, part: Mr. Robert fore- in man, testified, part: “He also stated “He further testified he did own not himself, property estate, us merely to to owned no but the real he it held in trust * * property Pitman; (C.M.-83).; over certain had been deeded to Mr. for by Pitman, strictly And, quit him for use in bail “He further testified claim (C.M.-66) ; And, bond business.” “He deed to was O’Neal Pitman executed shown, day testified that Pitman had deeded this date Au- 7th property gust, to him for use this bail bond delivered back to Pitman.” (C.M.-84) And, ; then business and in return Mr. Pitman “He testified he requested pieces prop- had these not own other real estate other than erty conveyed (C.M.- living in, be back him.” the home he had no 67). property during other the time he was Gibson, jury Mr. Richard mem- bail bond with Valdhe business Pit- * * ber, part: (C.M.-86). testified man his, “Mr. O’Neal said it ac- cording just to the contract held it in (C.M.-78). trust.” trial, does have told the record and there was no call for rebuttal or impeachment anything reveal other than what Mr. testimony. Plowever, concerning provision Pitman testified the deed. is intended meet those situa- At the conclusion Mr. Pitman’s testi- tions wherein the witness testifies in a mony the defense rested. court—after having testified before the grand jury offers testimony different Consequently, jury when the trial con- —and given jury. grand jury testimony along When sidered such happens, testimony with of- members other and evidence may required be fered, in court to under the trial court’s dis- instructions close the testimony, result, it as was except find related to jury could reach the grand jury; impeach or to guilty. the defendant witness.
In both instances the witness placed prior under oath being examined; IV. consequently by relating different testi- Insofar as the State contends the statute mony, the witness committed perjury— authorizes trial court to require either before the grand jury —or testimony grand jury members true, the court. Such being the witness reveal the before the may then charged, tried, be grand jury, an interpretation of the stat- perjury; trial, committed and at the required. ute pro- Title O.S. § require court can jury testi- vides as follows: mony be related. “A member of the grand may, how- part The second provision is intended to ever, required by be any court disclose authorize the to return an in- the testimony aof witness examined be- against witness, dictment whenever the purpose fore grand jury concludes that the witness did ascertaining it whether is consistent with testify truthfully ap- the time he given by the witness it; or, peared before when the witness re- court, or to disclose given veals certain facts of a [short confession] by any person, before them upon a jury may from which the infer that the charge against him perjury giving perjury. witness has otherwise committed his testimony his trial therefor.” conclusion be This reached when statute, As this writer views the considers the can separated into three parts concern presented by evidence all the witnesses ex- charge for perjury. The court can *7 amined, comparison testimony with the require the testimony a of member a witness, given by specific grand the and the grand jury to ascertain whether the testi jury therefore returns an indictment mony given before grand jury the is con pro- against the And third witness. the sistent with that which the gives witness clearly the vision authorizes members court; before the secondly, support grand called jury testify the —when a charge perjury when a witness im by on the perjury the the court—at pliedly admits concerning perjury, facts or indictment. falsely who testifies grand jury; before the Procedure, Wharton’s Criminal Law and thirdly, at the trial of the witness IV, follows: p. states as Vol. § perjury the charge. significant phrase The of the statute is that which reads: “in juror grand or decision or statute a “By giving his testimony.” It can un only be jury grand properly in the person other mean, giving testimony derstood to his permitted to disclose has been room jury. before the grand such before made witnesses statements juror by the testimony the jury, when Gearly the first circumstance purpose the case, person is offered applicable or other in this because the witness made his testify at other contradicting statements not [defendant herein] for a steam valve payment tri- contractor a different by such before witness and, contractor; the sale that wit- sold authority, or and when bunal had Board contract made after of con- was impeached proof ness has been Supreme The Kansas statements, into. testimony entered be- been tradictory conviction, holding affirmed is ad- Court jury sometimes grand fore grand jury may admission of him. Statutes mitted to corroborate However, read- a careful not error. grand was expressly authorizing be found State, supra, reveals Campbell ing of jurors a witness’ tes- whether testimony be- Campbell’s treated con- the Court jury timony grand admission, and as an fore given by him sistent with evidence Concerning differ- court, a confession. requiring grand jurors to dis- confes- and a an admission ence between testimony given them close the sion, in that case: the Court said charged perjury. with Con- by person a fessions of the commission or admissions only admits facts person certain “When offense, volun- freely of a or criminal may jury which the from * * person a witness tarily made is no guilt, there confession. infer jury, may subsequently grand guilty is an admission confession of A him when against be received as evidence itself, not an admis- act criminal placed (Emphasis he is on trial.” add- aof fact or circumstance sion ed.) guilt may be inferred.” which later, attempt point Hence, Supreme As will out I Court’s Kansas admitting confessions or ad- of the difference between clarification offense, distinguishes missions of a criminal as evidence confession and a admission tried, case; as except, one not without limitations. is instant case from the permit- this critical provisions instant becomes a general concerns question. testify. juror ting a 29, AM, Jur.2d, p.
Volume § provides: V. preferable “It is now the that an rule A careful re-examination significantly
admission incrimi- writer, convinces must, nating, short of a confession made a confession the defendant confession, like a have been made volun- hence, he left no need predicament; and tarily inducement, improper and without guilt for an inference of his whatsoever. be evidence All the accused. county attorney’s testimony discloses involuntary for excluding reasons attorney’s testimony county that fact. The apply involuntary confessions admis- promised that he revealed added.) sions as (Emphasis well.” file an information subsequently would charging perjury. with Conse- early An case princi cited as the trial, the mem- quently at defendant’s later pal authority, juror may county at- bers called a witness reveal *8 “grand jury con- torney related defendant’s given before the is v. fession,” in chief. part of the State’s case L.R.A., Campbell, 688, 85 73 Kan. P. 9 N.S., case, Campbell 533 (1906). In that to re- The record before Court fails flect, not, was having accepted convicted for bribe was a whether defendant or to any influence his official provided warning against action as a member self-incrimi- City nation, any of the immunity. Kansas Board of Nei- promise Education. or The the testimony showing State introduced four any is there that the defend- ther members the grand jury prove privilege against to .that ant invoked self- his Instead, ap- it is Campbell jury, incrimination. made testified before the that he pear testimony received from a certain defendant’s $412.00
67 it elementary is given freely knowledge and volun- grand jury was that such is Likewise, not testimony true. tarily. or not the defendant was to hold that Whether given by subpoena under investigation, and one actually target of the and who is a a target of perjury charge, investigation compelled potential man, testimony cannot only honestly who be by supported. could answered one he Further, left, attempted the Had this defendant provide the not answer. room, leave the county record of contained at- answer is torney attorney asked would have county trial. had him The was arrested and examination, by come would have been cited redirect “How did the court for you contempt.5 syllabus The about, Harris? Did issue sub- second Mr. to United Parker, Cir., States poena Jury you to v. 7 pro- or did the Grand ask 244 F.2d The vides : subpoena Mr. issue a O’Neal?” answered, attorney He
county “Yes Sir.” “A jury federal subpoena requir- asked, in re- appeared “And he then testify one to investigation pos- sponse subpoena?” to to the which sible tax in policy games evasion ‘com- answered, con- The examiner “Yes.” pelled’ the to testify witness within tinued, produced records “And he certain meaning of constitutional mandate response subpoena?” to which ‘compelled’ one be to testify against replied, “Among them “Yes.” witness himself. U.S.C.A.Const. Amend. 5.” Exhibit No. the contract?” was State’s view, It is present this writer’s after con- attorney county replied, “Yes.” which the study siderable research, that defend- attempted prosecutor then assistant ant—under these pro- circumstances—was show the voluntariness tected guarantee constitutional asking, “The about long It self-incrimination. has testified, voluntary you have which been jurisdictions, held in other [county testimony?” to which witness brought witness before the responded, (C.M. “Yes. Sir.” attorney] investigation is the target of the consti- 91-92.) him, privilege protects tutional though even testimony there foregoing Other than the he fails to claim the New privilege. The voluntary showing seems nothing to be York provides constitutionally rule testimony. This nature privilege against conferred self-incrimina- decisions quite writer is aware numerous tion though is violated even the witness relate, ap- fact a witness privilege.6 People does assert his v. pears jury subpoena under Tomasello, (1967) 21 N.Y.2d 287 does witness “com- not show that the N.Y.S.2d United 190. N.S.2d pelled,” prevent and does not Edgerton, (1897), States (D.C.Mont.) v. “voluntary.” And is being such with- F. the court held that an indictment out concerning ordinary quashed doubt true wit- would be where ness, required subpoena but to declare statement to be such appear before applicable investigated, being witness, to one who is as a and was sworn defendant, as a potential nothing required is short examined and to material matters, of a “legal fiction.” If such is declared without being informed or statutes, meaning there knowledge then that the grand had under REQUIREMENT NO LEGAL for one involving consideration matter a crimi- to respond subpoena, him, to a properly issued nal charge stating the court State, States, See Blanton See: v. Okl.Cr. Jones United (1925). U.S.App.D.C. *9 698 Blair United P. v. 342 F.2d States, judges urged adop- 281-282, 250 U.S. S.Ct. wherein four federal 39 (1919) 63 New L.Ed. 979 tion of the York Bule. [cited Parker, Cir., United States v. 244 F.2d 7 943].
68 compelled to a witness was that defendant called be-
that where this was himself, injury against the inhered ob- purpose fore the the for rights.7 charge, taining anticipated done to his evidence on the violence an target that the the defendant was 198 Minn. (1936) v. In State Corteau investigation. the the Notwithstanding information filed N.W. the 270 grand jury might fact that the been have only against defendant set aside. was purpose inquiring into called case, in- difference between that it generally, the bond when bail business one, complaint had to stant seems be that a apparent jury grand became the municipal against filed in the been Corteau the witness was defendant become prior being court his called before [assuming such fact when was not known holding grand jury. Explaining inquiry should commenced], the witness aside, set the information must be inquiry by have been excused from further Minnesota Court said: or, grand jury; at trial before his only taking apparent “The for reason admitted, testimony was should State grand jury, before as to evidence positive the de- showing have made a charge the criminal unrelated facts fully constitu- fendant was of his advised any other then matters before self-incrimination; against rights tional to determine would be understanding^ and that he those waived be found whether indictment should rights. clearly This would shown have person being so examined. grand that defendant’s before the that, upon The conclusion reached jury given voluntarily was and therefore presented, record here there a viola- Instead draws the con- admissible. one right constitutional tion record, point from the clusion compelled give not to evidence jury grand admissions was reached against himself.” permitted to into the plunge further paragraph syllabus The first to the matter, thereby full obtaining a confession Corteau, provides: v. supra, State the witness. However—under presented facts herein compelled to “Defendant could not be —when jury from the confession was obtained wit- and on oath come before ness, provisions the constitutional guilt per- either confess or commit his protected him in self-incrimination jury, him under statements made subsequent testimony. concerning trial such inadmissible in circumstances were prosecution being perjury, viola- defendant his own Had the testified right tion of his not to be constitutional in this and offered defense compelled testify against himself.” testimony, different to grand jury members’ would have Other cases holding that a defendant’s dif- been admissible refute defendant’s right against constitutional self-incrimina testimony; or defendant ferent had the tion was violated in a manner similar are: falsely jury, the testified Naughton v. (1909) Mo. been grand jury testimony have would 53; State Caperton (1918) S.W. 276 Mo. charge premised clearly admissible 795; 207 S.W. United Lawn States v. testimony, of those neither false (1953 674; NY) People DC F.Supp. Apparently situations existed this case. (1924) v. Cochran Ill. N.E. honestly testified grand jury, because he testified what subsequent being
From this charge, re basis of writer’s not the this Court, And, testimony. of the record view later false elementary Wigmore’s Evi- H. Textbook of the Law of See: John Student’s Press, privilege principle dence, Ch. statement of the Foundation XXXIV, pp. self-criminating facts as stated in his 370-371.
69
protected
no
ever
testify,
so there
from inquisitorial pro-
ceedings
refute.
compelling
members to
him to bear testi-
mony against himself of acts which
Webb,
Layman v.
This Court recited
*
might subject
punishment
him to
*.
323, 335,
Okl.Cr.,
while
350
(1960)
P.2d
charges arising
contempt
may be,
out
“It
discussing
it is the
thing
obnoxious
to
grand jury witness
its
repulsive form,
of a
least
the refusal
illegitimate
but
him,
re-
questions put to
answer
practices
unconstitutional
get their
papers
first
produce
footing
fusal
books
to
way,
namely, by
partnership
approaches
silent
and silent deviations
privilege:
grounds
legal
of his constitutional
from
procedure.
modes of
This
can only be
obviated
adhering to the
production
compulsory
“The seizure or
rule that constitutional provisions for private
papers
of man’s
or
to be
books
security
person
and property should
against
is not sub-
used in evidence
him
”
* * *
be legally construed.
stantially
compelling him
different from
against
to
Accord-
It is
be a witness
himself.
also
Perry
State,
observed in
ingly,
privilege
accused
Okl.Cr.
of an
nate presume and concludes with the acquiescence follow- in their loss’ [; and ing: question ‘whether one accused to] “ * * * * * * has right crime waived his person prose- but no shall be must depend par- each case any subjected penalty cuted or or ticular facts and circumstances surround- forfeiture for or on account of case, including background, that matter, transaction, thing or concerning ” experience, and conduct of the accused.’ produce which he so evi- State,
dence.” Perry supra, correctly v. states the witness, law concerning an ordinary who opinion case, This Perry Court's in the appears subpoena under and testifies. See supra, recites: State, also: Okl.Cr., Cortez v. 415 P.2d “The answer made the defendant in 196, However, (1966). 199 when the wit- response questions Clifford’s ness target is the grand jury in- preliminary attorney at examination vestigation, he is entitled to be warned of Clifford constituted confession of his right against self-incrimination. Oth- Perry’s guilt of the defendant crime of erwise the involuntary confession becomes added.) adultery.” (Emphasis and hence inadmissible at his It trial.8 this Thereafter Court decided: Perry’s pre- confession at the that this “It conclusion statement is our liminary in Perry examination of Clifford of Clifford’s should have been ad- v. State, supra, involuntary became against mitted in him and evidence was “compelled” reason he was to answer de- causing the major factor in question, fense counsel’s being without guilty.” verdict of return a herein, forewarned. defendant’s case there is little doubt writer’s case, mind supra, Perry quotes In the the Court defendant under the same com- State, from extensively Scribner v. 9 Okl.Cr. pulsion by Perry], truthfully 65, 933, 939, [felt 4 132 P. which includes the grand jury. Hence, testified before the statement: confession did not questions f a such witness answers “[I] meet the voluntary Lyons forth in test set as to himself he manner incriminate State, 197, 142, v. 77 Okl.Cr. 138 P.2d 140 unless, immunity granted should not be Id., 248; 1208, P.2d 322 64 U.S. S.Ct. constitution, language in the Perry State, 88 L.Ed. as cited in v. ‘compelled, giv,e has been evidence’ supra. being true, Such which incriminates him and has ‘so tes- testimony in this inadmissible ” added). (Emphasis tified.’ especially testify. since Thereafter, quotes Tague Court rights Defendant’s constitutional were State, v. 15 Okl.Cr. P. 174 violated, when the provides that one must have claimed admitted, thereby placing improp- silence, privilege of denied that erly obtained the trial confession before court, privilege by testify, and forced jury. Judge Frank’s statement in United immunity in order to secure under Article Cir., Scully, States 225 (1955), v. 2nd F.2d following authority, And § 113, 117, pertinent [Citing: most here: Meadows, parte Court Ex cites 70 Okl.Cr. Boyd States, supra.] v. United 139; parte Bradley, P.2d and Ex Supreme “The Court has said that the Okl.Cr. P.2d and states the privilege constitutional self-in- thusly: rule priv- crimination and the constitutional ilege indulge immunity from unreasonable every pre- reasonable “‘Courts sumption search and seizure are nature waiver funda- rights, constitutional and do not twins.” mental State, Okl.Cr., 104 P.2d Okl.Cr. P.2d 8. See: Coleman v. mod. 70 supported presumption. with more than a And, fact that United notwithstanding the holds, especially the This is true con- of defendant’s supra, Scully, States right against stitutional self-incrimination. the witness MERE POSSIBILITY no basis furnishes may later be indicted *12 VI. of his advised requiring that he be for Amendment, when Fifth rights under ordinary is It clear .that an wit grand a testimony before give summoned grand jury give ness a must testi that Cir- interesting to observe jury, it is mony except might incriminate where it opinion: in his Judge Medina states cuit misdeed, past him for some he cannot prose- prudent that clear a if he grounds “It is at least refuse on the that error, cutor, possibility of perjury, subjected forestall the commits would be give warning. In- in a will such cases incrimination. All witnesses as must such that, mat- deed, suppose as a give testimony of regarding one would matter policy, a play or or they knowledge, ter of ethics fair testi have which prosecutor in all cases refrain mony privileged would is not and is relevant to a Grand calling witness before investigation as a matter under de jure de or Jury any person except testimony who is wfiere the an accused.” might tend to incriminate the witness facto past some act. fact that the Judge relies on the Medina least, circuit, attorneys of his at district this case However, as the facts of practice. But there seems follow that reveal, being investigated by one supposi1 in room this case be little be just witness and cannot by the Honorable Circuit tion, referred to target as treated such. The Judge. ordinary investigation is not an wit also, concurring opin- ness; suspect in his is is entitled to be We observe Frank supra, Judge Scully right against ion to the self-incrimina warned tion; page states at is so warned 116: and unless the witness rights re and advised his constitutional have state and federal courts “Several thereto, any testimony revealed lated indicating gone holding further or may not he used grand jury him before warning necessary is if it unmis- charge prosecute him to a later that, takably appears when a witness however, testimony; arising out of that subpoena jury, the before a under having of his constitu after been advised prosecutor then intends to seek the wit- right against tional self-incrimination added.)9 (Emphasis ness’ indictment.” testify, right, witness waive Supreme According to United States consti any other as he can waive same Alabama, Court decisions Hamilton v. right. tutional 157, 52, 114 368 7 L.Ed.2d U.S. 82 S.Ct. States, bar, 377 we conclude (1961); and Massiah v. United In the case at 201, 1199, subject in 12 246 U.S. 84 S.Ct. L.Ed.2d that the defendant therefore (1964); jury proceeding grand jury can be vestigation of the thereof; stage consequently “target” virtue critical of a trial and compelled to suspected subpoena when one committed tecum he was duces show was no alleged testify; offense is his con- insofar as there have waived allegation that the defendant rights, stitutional such must in the record Citing: Edgerton, Allison, P.2d 153 116 Mont. United States v. D.C. v. Smith, Mont., 374; People Gillette, 141; 228 80 F. 126 56 S.D. v. State v. Sly, People 240; App.Div. 665, 133; v. rel. Poach 111 State ex N.Y.S. N.W. Luekman, Marcello cf. N.W. v. 164 Misc. N.Y.S. 63 S.D. 257 297 ; People Rauch, States, Cir., F.2d Misc. 5th 196 618-619 v. v. United States, Cir., 454, 456-457; People 441; 251 N.Y.S. Maffie v. United Bermel, 524; Misc. 128 N.Y.S. F.2d 228-229. right (2) his constitutional investigation either advised self-incrimination; general that he was a investigation of the bail bonding a man- right such business knowingly waived “target” been investigation; to have ner to cause his offered he was given; or that voluntarily give failure to a witness giving prosecution for immunity from appearing defend- conclude testimony; we must warning ipso Miranda does not bar facto rights were violated ant’s constitutional the admission of such a sub- intro- when the Perjury. trial for sequent perjury. duced his trial The first are two conclusions conclu- Lay- *13 recited Powell Judge As late the sions of fact to be adduced from an ex- Webb, supra: man v. record, amination of the but the third con- States, by- is we cannot clusion a conclusion in I of law which the United “[I]n rely take on the in safe-guards decision rendered Robinson pass Constitutional Cir., whom v. short-cuts, States, out those United seeking in 401 F.2d Court, law. through the wherein speaking violated the thought have may it of Judge of laws and Honorable Warren Madden had this government Ours is say: men.” “In Scully, the case of United States v. opinion defend- of the are therefore We 113, 116, Judge (1955) 225 F.2d C.A.2 County Dis- in Oklahoma ant’s conviction Medina wrote: number
trict Court case be, same ‘ perjury should charge of * * * possibility the mere that the in- with remanded hereby, is reversed may witness later be indicted furnishes charge. to dismiss structions requiring that he be ad- basis for of Fifth rights vised his under the BUSSEY, Judge (dissenting). Amendment, summoned to give with the disagree testimony respectfully grand jury.’ before a I must insofar Brett by Judge opinion rendered quoted agree We with the statement. It he concludes: approval in was cited with United States O’Neal, given testimony of (1) that the Parker, (1957), v. 244 F.2d C.A. 7 coerced; jury, 61, 2 cert. den. 355 U.S. 78 S.Ct. target (2) that O’Neal L.Ed.2d 48. investigation; agree do not We with the defendant’s the de- to advise (3) the failure witness, pursu- contention court rights against of his constitutional fendant subpoena, compulsion ant to a is under taking to the of prior self-incrimination respects compulsion similar in all bars his before custody as a being police his the admission investigation suspect whom the has Perjury. subsequent trial for his True, important there is an focused. testimony sup- In the absence some cir- dictum to the effect that certain conclusions, I be- colleagues porting my that of an illiterant cumstances such as assume1: it is as reasonable to lieve gives self- ignorant witness who testimony, incriminating testimony of defend- (1)that him of not later be used convict freely jury was given ant self-incriminating the crime which given; voluntarily coerced or that Particularly when the admis is this true rights his constitutional not advised of sibility attacked of the “confession” grounds that it on the the trial court sume that Mr. was thoroughly See O’Neal testimony related. United States privilege aware of Orta, (1958) self-incrimi- C.A. 5 253 F.2d States, prior nation appearance to his 340 U.S. see v. United Rogers grand jury. 95 L.Ed. S.Ct. usually applicable rule conviction; I affirm the would more- to incriminate privilege a witness not over, I specifically dissent on the instruc- if not claimed.” himself waived tions the trial court to directing enter an dismissing possible order for it is the defendant was In the instant case independent partner evidence exists man whose business intelligent grand jury testimony, bonding practiced had in the business bail support independently would extensively charge defense of criminal cases. Perjury. to as- I do not believe is unreasonable